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John Baraniak and Jenny Chou

Zero-tolerance can mean zero due process

By John Baraniak and Jenny Chou
December 24, 2009

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IN A WIDELY reported recent incident, a 6-year-old in Maryland was suspended from school. His offense? Bringing a camping fork-spoon-knife utensil to school to use at lunch. In Pennsylvania, a high school student who picked up an object off the floor was expelled because the object was a knife. In each case, the student ran afoul of the school district’s “zero-tolerance’’ policy on the possession of weapons in school.

Less sensational, but far more important, is a case that recently played out in Massachusetts federal court. LB, a 14-year-old eighth-grader in a Worcester middle school, was an honors student with a spotless discipline record. While in gym class, a friend told him that another student had threatened him with a knife. LB confiscated the knife and planned to go later to the office to turn it in. Before that happened, however, word spread, and the assistant principal approached LB and asked for the knife. LB was suspended from school for a year. It made no difference that LB didn’t bring the knife to the school or didn’t threaten anyone with it. In implementing a “zero-tolerance’’ weapons policy, it was enough for Worcester officials that LB had “possessed’’ the weapon, even if only for a short time.

LB fought the suspension in court and won. Federal District Court Judge Dennis Saylor, in granting LB’s motion for a preliminary injunction, ruled that the one-year suspension was so grossly disproportionate to any wrongdoing LB committed that it was not rationally related to any legitimate state purpose and therefore offended the US Constitution’s guarantee of substantive due process.

The case is significant because it is one of the first decisions by a judge invalidating a zero-tolerance policy on constitutional grounds. As a result of the court’s ruling, LB was reinstated in school, and his record was expunged. Worcester agreed to change the way it handled these cases and to decide future cases on their individual facts.

LB’s case represents a rare judicial victory in the battle to keep children in school. Over 10,000 students drop out of school in Massachusetts each year, including many who are effectively pushed out through excessive discipline. The American Bar Association recently adopted a recommendation to reduce the removal of students from school through the discipline process, and the Legislature is considering raising the dropout age from 16 to 18. The court’s rejection of a zero-tolerance policy will complement these initiatives.

The Maryland case reignited a national debate about zero-tolerance weapons policies. Proponents of the policy argue that rigid adherence to the rule is necessary to ensure school safety, and that individual case-by-case determinations occupy scarce resources better devoted to teaching. They argue that such a policy insulates them from charges of racial discrimination since the majority of students suspended or expelled are students of color.

But zero-tolerance advocates ignore some basic truths. The Supreme Court has ruled that students facing long-term suspensions are entitled to a fair hearing, so resources will be expended in any event. In zero-tolerance districts, these hearings are often a pretense and the outcome assured before the process even begins. Since a hearing process is constitutionally mandated, there is no good reason for school officials not to afford students meaningful hearings. Our legal system is based on punishing only those deserving, and an accused’s culpability must be considered.

Schools should not forget that their core mission is to educate young people. Expelling and/or suspending a student for a prolonged period can have a devastating impact on his or her education and life. As LB’s case made clear, school officials need to recommit themselves to keeping students in school. If they don’t, courts may do it for them.

John Baraniak, a partner at Choate, Hall & Stewart LLP in Boston, and Jenny Chou, an attorney at the Center for Law and Education in Boston, represented LB pro bono in court.

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